This episode is brought to you by Shopify.

That's what I hear when I make another sale on Shopify.

The all-in-one commerce platform that allows you to start, run and grow your business.

Shopify is revolutionising millions of businesses worldwide.

So sign up for a £1 per month trial period at Shopify.co.uk

Ask podcast 23 all lowercase and take your business to the next level today.

This is CBS Eye on the World. I'm John Bachelor.

I welcome Professor Richard Epstein to the Hoover Institution, writing into finding ideas about a matter this before the United States Supreme Court right now.

The case turns on National Pork Producers Council versus Ross, which is a challenge to a proposition passed in California referendum in 2018, Prop. 12.

But in order to explore the challenge and also what we can anticipate from the court, we need to he to the Constitution itself, the very famous and very controversial commerce clause.

It reads that Congress shall, quote, have the power to regulate commerce among the several states.

That is the important part here. It also speaks of foreign affairs.

But more interestingly, Richard introduces us not only to what I just read, Congress shall have the power to regulate Congress among the several states, but also the dormant commerce clause.

This is a revelation to me, but it's a significant debating point among constitutional lawyers and members of the Supreme Court for many generations.

Richard, a very good evening to you. What is the dormant commerce clause? Good evening.

Yes, well, of course, the dormant commerce clause is not something that is written in the Constitution.

So the word Paul clause has to be put in quotation marks, but from the very beginning, the question was whether or not when Congress had the power of a certain domain, whether that power was exclusive or whether it was shared with the state being concurrent.

And it turns out we kind of have a squid verdict on this. There are certain kinds of things. It turns out the federal government and the state are both able to regulate.

And in some particular cases, it is said that the power that the federal government has precludes the state from engaging in certain forms of regulation.

This is not a novel confection. The first instance of the dormant commerce clause being born into play was the first instance in which the commerce clause was born into play.

It was a case called Gibbons and Odden. And the grand question before the court was the extent to which the federal government had the power to regulate commerce between Elizabeth town, New Jersey and New York City.

And there was a effort on the part of Chancellor Kent, a great justice in New York to say the federal commerce clause only allowed you to regulate transactions at the border, but did not extend into the interior of the state.

...